Citation Nr: 0942047
Decision Date: 11/04/09 Archive Date: 11/09/09
DOCKET NO. 04-17 873 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to service connection for a psychiatric disorder,
including posttraumatic stress disorder (PTSD), anxiety, and
depression.
REPRESENTATION
Appellant represented by: Robert W. Legg, Attorney
ATTORNEY FOR THE BOARD
W.T. Snyder, Counsel
INTRODUCTION
The Veteran served on active duty from June 1969 to January
1972.
This appeal to the Board of Veterans' Appeals (Board) arose
from an October 2002 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Huntington, West
Virginia, which denied the benefit sought on appeal.
The Veteran's attorney submitted additional evidence for
which he waived initial RO review and consideration. In
light of the waiver, the Board may properly consider the
evidence in the action below without the necessity for a
remand. See 38 C.F.R. § 20.1304 (2009).
In a decision dated in January 2008, the Board denied the
Veteran's appeal, and he appealed the decision to the United
States Court of Appeals For Veterans Claims (Court). In
March 2009, the Veteran, through his attorney, and the
Secretary of Veterans Affairs, submitted a Joint Motion for
Remand (Motion). In an Order also dated in March 2009, the
Court granted the Motion, vacated the January 2008 Board
decision as it pertained to the PTSD claim, and remanded the
case to the Board for further appellate review consistent
with the Motion.
The appeal is REMANDED to the VA RO in Huntington, West
Virginia.
REMAND
The additional evidence consists of numerous significant
periodic reports of the activities of units and commands to
which the Veteran was assigned during his September 1970 to
September 1971 tour of duty in Vietnam. The primary enemy
actions noted in the reports are ambushes on convoys.
The Veteran's May 2004 statement noted that, between February
and May 1971, his unit was ambushed at various places in the
Central Highlands during the push into Cambodia;
specifically, from Dak To on Highway 14, South, to Ban Me
Thout. This is the only specific stressor provided by the
Veteran. His personnel records note his Military Occupation
Specialty was a wheeled vehicle mechanic. They also note
that, while serving in Vietnam, he was assigned to the 545th
Transportation Company from September 1970 to March 1971, and
the 88th Transportation Company from March 1971 to September
1971. The Board further notes that the Veteran does not
specifically assert that he was actually a part of convoys.
The reports submitted by his attorney strongly suggest the
maintenance function was static or stationary at wherever the
units were based.
In light of the basis of the Motion, and the Court precedents
cited by the Veteran's attorney in his informal brief, the
Duty to Assist mandates a remand to afford the Veteran an
additional opportunity to further clarify his claimed
stressor.
Accordingly, the issue of service connection for a
psychiatric disorder, including PTSD, anxiety, and depression
is REMANDED for the following action:
1. Should the RO's independent review of
the additional stressor evidence submitted
by the Veteran's attorney not result in a
determination that the claimed stressor is
confirmed, the RO should contact the
Veteran and inform him of alternative
forms of evidence, such as Buddy
Statements, which may show his personal
involvement in hostilities, his physical
proximity to engagement with the enemy, or
another traumatic or stressful event.
The RO should also ask the Veteran if
there is a specific and shorter window,
that is, 30 to 60 days during the period
February 1971 to May 1971, in which he
believes in-service stressful events
occurred, and that he desires the RO to
submit to the U. S. Army and Joint
Services Records Research Center (JSRRC).
If so, the Veteran and his attorney should
provide specific information as to the
claimed in-service stressful event(s) they
desire researched by the JSRRC.
2. Should a claimed stressor be confirmed,
whether additional records are obtained or
not, the RO should arrange for an
appropriate VA mental disorders
examination. All indicated psychological
or other diagnostic tests should be
conducted. The relevant evidence in the
claims file should be provided to the
examiner(s) as part of the examination.
After and reviewing the evidence in the
claims file, reviewing any psychological
test results, and examining the Veteran,
the examiner(s) should diagnose any
acquired mental disorder present.
If PTSD is diagnosed, the specific
stressor should be set forth, to include
whether in service or thereafter.
If other Axis I or Axis II psychiatric
disorder(s) is(are) diagnosed, including
anxiety, depression/depressive disorder, or
alcohol abuse/dependence, the etiology of
such psychiatric disorder should be
described.
3. After the development requested has
been completed, RO should review the
examination report to ensure that it is in
complete compliance with the directives of
this REMAND. Then review the Veteran's
claim, and send him and his attorney a
supplemental statement of the case, and
give them an opportunity to respond to it
before returning the file to the Board for
further appellate consideration.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The Veteran has the
right to submit additional evidence and argument on the
matter the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999). The Veteran is advised to appear and
participate in any scheduled VA examination(s), as failure to
do so may result in denial of the claim(s). See 38 C.F.R.
§ 3.655 (2009).
_________________________________________________
J. Parker
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).